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JVP takes P-TOMS to SC
By Santhush Fernando
The Janatha Vimukthi Peramuna continued its all-out legal battle against the P-TOMS with three separate petitions filed in the Supreme Court last week.
Last Tuesday three fundamental rights petitions were filed in the Supreme Court on behalf of the 39 JVP Parliamentarians, requesting Court to declare the agreement null and void and to issue orders restraining its enforcement.
The Supreme Court Bench comprising Chief Justice Sarath N. Silva, Justices Raja Fernando and Gamini Amaratunga granted leave to proceed to three petitions filed through S.L. Gunasekera, H.L. de Silva and Gomin Dayasri.
In the petition filed through S. L. Gunasekera, the Attorney General and Relief, Rehabilitation and Reconstruction Minister (President Kumratunga) were cited as first and second respondents, respectively.

Signatories to the P-TOMS MoU, Relief, Rehabilitation and Reconstruction Ministry Secretary M.S. Jayasinghe on behalf of the Government and Shanmugalingam Ranjan, on behalf of the LTTE were cited as third and fourth respondents.

The JVP, a former UPFA ally charged that the terms of the MoU were neither disclosed to the Cabinet nor approved by it. The JVP in its petition said such action was a negation of the collective responsibility of the cabinet and to Parliament and as a result was not a valid exercise of Ms. Kumaratunga’s executive presidential power.

The JVP claimed that nowhere in the MoU was it mentioned that the Relief, Rehabilitation and Reconstruction Ministry Secretary, M.S. Jayasinghe was authorized to sign the document on behalf of the Government with an individual who claimed to represent the LTTE.

It further stated that since President Kumaratunga herself had not been duly authorized to enter into such an agreement or negotiate terms, she cannot authorize the Ministry Secretary M. S. Jayasinghe to sign the MoU, and as a result the P-TOMS Agreement was null and void and did not bind the Government.

The MoU purported to set up structures that were to be established outside the Constitution with powers parallel to government institutions and as a result contravened fundamental law, the JVP claimed in the petition.
It charged that the P-TOMS agreement was not valid in law and created by an Act of Parliament, but sought to create legal norms not derived under the Constitution. Ass a result it was merely an understanding unlawfully reached between individuals relating to affairs of the Government and had no force in law.

The petitioners said President Chandrika Kumaratunga as the Head of the Executive had no lawful authority to assume law making powers, which were solely vested in Parliament, and cannot lawfully enter into an agreement on behalf of the Government without the authority of Parliament.

It said the document did not disclose the source of authority conferred on the Ministry Secretary M. S. Jayasinghe to sign on behalf of the Government or the authority of S. Rajan on behalf of the LTTE, which was not a legal person and which has as its objective the creation of a separate state within the territory of Sri Lanka.

The MoU enabled private bodies of persons to usurp governmental powers presently exercised by bodies set up under the Constitution, usurping lawful powers, the JVP claimed in the petition.

The petitioners stated that the execution of the P-TOMS constitutes executive and administrative action and its envisaged implementation also constitutes an imminent infringement of their fundamental rights. The disbursement of funds and material aid to some and not to others may be disputed by the recipients and such questions cannot be determined unless the Regional Committee had judicial power or quasi-judicial powers and neither of these can be given to the RC and such assumption would be illegal, the petition said.

As per the Constitution, all funds received by the State form the Consolidated Fund. No funds received for Post-Tsunami relief can be channelled to the Regional Fund nor can any payment be made except under the authority of a warrant made by the Minister of Finance and no such warrant can be issued unless the sum has been granted by a resolution of Parliament, the petitioners claimed.

The petitioners requested the Supreme Court to issue notice on the respondents, declare the MoU null and void and invalid in law and issue a prohibitory injunction against its enforcement and make an interim order pending the final determination of the petition.

In the petition filed through Gomin Dayasri, the petitioners appealed the courts to declare that their fundamental rights had been infringed or were about be infringed, and furthermore the MoU was discriminatory, arbitrary, unreasonable, capricious and bad in law.

Further it requested the court to issue a stay order preventing any appointments being made to the High Level Committee (HLC) and the Regional Committee (RC) until the hearting and determination of the action.
Accordingly court granted leave to proceed with the hearing of the petition on Tuesday.

Earlier on June 28, JVP Western Provincial Councillor Vaas Gunawardhana filed action in the District Court of Colombo while JVP front organizations -- the Patriotic National Movement (PNM) and National Bikkhu Front (NBF) filed action separately against the P-TOMS.

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